Opinion
No. 27162. Department One.
November 28, 1938.
APPEAL AND ERROR — RECORD — STATEMENT OF FACTS — PROPOSAL OF AMENDMENTS — NECESSITY. Where, on appeal, a judgment was reversed and the remittitur sent down and an appeal was taken from the judgment entered thereon, the appellant (respondent in the first appeal) can not complain because the statement of facts in the first appeal, stipulated to be made a part of the record in the second appeal, did not contain its exceptions to instructions; since, if it found the proposed statement of facts to be incomplete or deficient on the first appeal, it should have demanded appropriate amendments at that time.
SAME — DECISIONS REVIEWABLE — AFTER REMAND BY APPELLATE COURT. No appeal lies from a judgment entered in accordance with the directions of the supreme court.
SAME — SUBSEQUENT APPEALS — FORMER DECISION AS LAW OF CASE. The decision of the supreme court on appeal becomes the law of the case upon a subsequent appeal.
See 3 Am. Jur. 541.
Appeal from a judgment of the superior court for Pierce county, Card, J., entered April 13, 1938, upon remittitur of the supreme court, in an action for wrongful death. Appeal dismissed.
Harry H. Johnston, John W. Fishburne, and A.M. Ursich ( John E. Belcher, of counsel), for appellant.
Burkey Burkey and M.F. Porter, for respondent.
The instant proceeding presents an appeal by Pierce county from a judgment entered against it pursuant to the mandate of this court in Corbaley v. Pierce County, 192 Wn. 688, 74 P.2d 993.
This appeal involves the same facts as those appearing in Corbaley v. Pierce County, supra. By virtue of a stipulation of the parties and an order of this court, the transcript and statement of facts in the previous case have been made a part of the record in the instant proceeding, and in addition a new transcript and a supplemental statement of facts are in the present record.
This case has been decided once on appeal, a petition for rehearing has been denied, and the remittitur has been sent down to the superior court.
Respondent moves to dismiss this appeal upon the ground that no appeal lies from a judgment entered upon and in accordance with the mandate of this court on a prior appeal.
It is urged by appellant that Pierce County was a respondent on the former appeal; and, the judgment of the trial court being in its favor, it had no occasion to propose any amendments to the proposed statement of facts so as to include therein its exceptions to the instructions given by the trial court, since the inclusion of them was not necessary to a determination of the former appeal.
[1] In the previous appeal, appellant did not cross-appeal and did not propose any amendments to the proposed statement of facts. The statement of facts was certified by the trial judge to contain all of the material facts, matters, and proceedings occurring in that cause; and if appellant found the proposed statement of facts to be incomplete or deficient in the former appeal, it was incumbent upon it to speak at that time, and to demand the appropriate amendments thereto.
[2, 3] Appellant also contends that several errors, made during the course of the trial, entitle it to a reversal, and that the lower court did not enter judgment in consonance with the judgment and remittitur of this court in Corbaley v. Pierce County, supra.
It is sufficient to state that the judgment of the superior court has been entered in accordance with the directions of this court, and the judgment attempted to be appealed from is not appealable. Frye v. King County, 157 Wn. 291, 289 P. 18.
The decision upon the previous appeal became the law of the case upon this appeal. Cannon v. Seattle Title Trust Co., 145 Wn. 691, 261 P. 642; Fleming v. Buerkli, 164 Wn. 136, 1 P.2d 915; Stusser v. Gottstein, 187 Wn. 660, 61 P.2d 149.
The motion to dismiss this appeal is therefore granted.
STEINERT, C.J., MAIN, BLAKE, and ROBINSON, JJ., concur.